Categorising a litigant is important first step


Categorising a litigant is important first step

Ascertaining the legal status of a litigant is an important first step. Whether a “corporation” is involved, or an “employee” is suing, will determine the applicable relevant rights and obligations, as these cases illustrate.


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Ascertaining the legal status of a litigant is an important first step. Whether a “corporation” is involved, or an “employee” is suing, will determine the applicable relevant rights and obligations, as these cases illustrate.

Corporations can be made to provide incriminating documents

The High Court pointed out that the CFMEU was not protected against self-incrimination – noting the union is a corporation and so unable at common law to invoke this privilege or the privilege against self-exposure to a penalty.

Consequently the union was ordered to produce documents sought by Boral Ltd.

If the union was a natural person, production of documents pursuant to such an order might be resisted as offending the privilege against self-incrimination, with the result that an order for discovery would be refused.

The High Court explained:

“It is not a fundamental aspect of the accusatorial criminal justice system that a corporation should be entitled to resist a requirement for compulsory production of documents. That is why the common law does not afford corporations a privilege against self-incrimination or against self-exposure to penalty.

"It follows that, in the case of a corporate defendant, there is no need for any specific statutory abrogation of the fundamental principle or companion rule in order to render the corporate defendant susceptible to an order compelling the production of documents. In particular, there is nothing in principle or otherwise about the integrity of the criminal justice system which warrants that a corporate defendant to a civil proceeding for contempt, whether civil or criminal, should not be ordered to make particular discovery of documents or to produce them.”

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21 (17 June 2015)

Enlisted defence service personnel not employees

Under common law, enlisted members of the Australian Defence Force are not employees.

The central question for determination in this case was whether such members were, nonetheless, “employees” within the meaning of the Fair Work Act 2009 (Cth).

After examining the legislation a full court of the Federal Court held that the common law position applied under the legislation.

The applicant was attempting to argue adverse action arising from action taken against him because he was HIV positive, but was not able to bring this complaint as he was not an employee at law.

C v Commonwealth of Australia [2015] FCAFC 113 (21 August 2015)

Is foreign based employer a constitutional corporation?

Are foreign corporations within the jurisdiction of the Fair Work Commission? This matter came before a Fair Work Commission full bench earlier this year. 

The full bench stated the appellant corporation had at least made out an arguable case to be excluded.

In issue was s23 of the FW Act – “A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.’

The corporation submitted that the FW Act cannot and does not extend to regulating the activities of a foreign corporation which does not have any presence or conduct any activity in Australia. It argued that it must follow that an associated entity that is a foreign company with no Australian activities is not bound by the FW Act. Therefore, its employees cannot be included in the calculation of the number of employees of a national system employer that is an associated entity of the foreign company.

The appellant-corporation submitted that as the commissioner concluded to the contrary he was in error.

Permission to appeal was granted.

Baccara-Geva (Australia) Pty Ltd T/A Baccara v Edi Idelman – FBof FWC - 25/03/15

See also: Definition of employer

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